Clash of Titans

A game of hardball among the Founders.

J. Harvie Wilkinson III

November 26, 2012, Vol. 18, No. 11

Many Americans may know the name of Aaron Burr, though not much more. But in 1807, the prosecution of Burr was a very big deal. Imagine: a former vice president of the United States on trial for treason!

So R. Kent Newmyer, professor of law and history at the University of Connecticut, has quite a story to tell, and he tells it well. The tale involves three men—Aaron Burr, Thomas Jefferson, and John Marshall—drawn almost fatefully together out of mutual dislike, even loathing. Around them is a large supporting cast—some of whom remain shadowy while others, most notably the lawyers at Burr’s trial, are brought successfully to life in Newmyer’s account.

The trial revolved around Burr’s mysterious activities on America’s Western frontier. Either he was intent on dislodging Spain from Mexico (though perhaps only in the event of a declared war), or on provoking the secession of the Western states from the Union. Newmyer wonders “if Burr himself really knew for sure what he planned to do” beyond resurrecting his own relevance to American life, and finding fame and fortune in the enticing Southwest. So widely mistrusted was Burr by many of his contemporaries—John Adams memorably called him the man who “must and would be something”—that President Jefferson suspected the worst. As did most Americans: The “packed courtroom often verged on chaos,” writes Newmyer.

For many, the trial of a humbled blueblood such as Burr was first-class entertainment. According to one young witness, “the crowd soon divided into partisan rooting sections, with the preponderance of the ladies on Burr’s side of the courtroom.” Lawyers on both sides sought to play to public sentiment in hopes of burnishing their own reputations and influencing the verdict.

The trial took place in Richmond, and John Marshall presided over the fracas in his capacity as a Supreme Court justice riding circuit. At the outset, the defendant seemed to be in a bad way. America’s sense of nationhood was new and fragile, and Thomas Jefferson had as much as branded Aaron Burr a traitor in an address to Congress some six months before the trial began. Although Burr and Marshall were fellow Revolutionary War veterans, Marshall was an admirer of Alexander Hamilton, whom Burr had killed in a duel on the heights of Weehawken in the summer of 1804. And yet the jury acquitted Burr—or, more accurately, rendered an opaque verdict of “not proved to be guilty under this indictment by any evidence submitted to us.”

How did the prosecution manage to squander its advantages? Well, for one thing, there were several glaring weaknesses in its case. Burr’s Western “army” was in reality an ill-equipped gaggle of 25 or 30 men, seemingly incapable of any operational success, much less “levying war” against the Union. Moreover, Burr was not even present when whatever passed for war was supposedly being levied.

Burr also assembled a crack defense team, including the eminent John Wickham, “a lawyer’s lawyer and a consummate professional with a killer instinct.” But the stage manager of the defense was none other than Burr himself. Burr may not have been steeped in the niceties of legal doctrine, but, says Newmyer, “he knew what he needed to know and had a reputation for getting the job done.” He was a good trial lawyer, and, after all, “it was his own life that was on the line—a fact that concentrated his mind wonderfully.”

The fact of Burr’s acquittal owes much to the nature of the Constitution’s Treason Clause. The Framers had themselves recently been deemed treasonous for their activities against the British Crown, and they were not about to make this particular crime an easy one to prove. Moreover, treason was (as Marshall once put it) prone to “excite and agitate the passions of men”—a club too temptingly wielded against political enemies as much as real traitors.

The result was a high bar for conviction, requiring “levying War” against the United States or giving “Aid and Comfort” to the nation’s “Enemies.” Furthermore, “No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.” It was altogether predictable that a clause such as this would become a lawyer’s feast, with terms that were hotly disputed during Burr’s trial and remain contested to this day. (As Justice Robert Jackson noted in 1945, “The little clause is packed with controversy and difficulty.”) For the most part, prosecutors have avoided treason charges altogether, especially when prosecutions under other federal statutes aimed at protecting national security might achieve much the same end. When Adam Gadahn was indicted for treason in 2006, it was the first such charge in more than a half-century.

So what kind of man was Aaron Burr? Not, perhaps, the pure villain one might think. Few people are all bad and, as to Burr, Newmyer rightly attempts to balance the ledger. He notes that Burr fought bravely in the Revolution, that he was a devoted father to his daughter Theodosia, that he “served effectively” as vice president, and, most poignantly, that for four years he cared for his friend and defense attorney at his trial, Luther Martin, after Martin “suffered a paralyzing stroke.” Still, Newmyer’s statement that, in his headstrong actions and “open defiance of polite conventions,” Burr was “America’s very own Lord Byron” seems, alas, a bit much.

The remarkable thing about America’s Founding period is the extent to which it was driven by attachments to ideas and principle. The great figures of that period (Adams, Jefferson, Hamilton, Marshall, James Madison, George Washington) are all distinguished by their commitment to a cause much larger than themselves. And for all his better moments, Burr could be astonishingly selfish. Witness, for example, his relative indifference to his own “army,” some of whom, at least, were prepared to sacrifice considerably for him. One need not take every instance of the Founders’ self-professed idealism at face value to note that Burr’s gaze throughout this period was (as Newmyer acknowledges) firmly fixed on Number One.

As for Marshall, Newmyer goes a tad too easy on him. Shortly before the trial, Marshall attended a party for Burr thrown by Burr’s chief counsel, Wickham. Whether “the gentlemanly tradition of the Richmond bar and Marshall’s long friendship with Wickham” explain his presence, or whether he “toasted Burr’s health” out of respect for his host, seem largely irrelevant in view of his initial lapse of judgment. Then, too, Marshall’s brother-in-law Edward Carrington was foreman of the jury, and, during the trial, Marshall issued a subpoena duces tecum to President Jefferson, an acknowledged archenemy whose views on popular sovereignty and states’ rights differed markedly from Marshall’s own. Finally, he issued crucial restrictive rulings on what evidence the prosecution might introduce, causing critics to think, not implausibly, that he was bent on directing a jury verdict for the defendant.

Taken in toto, and even given the fact that judicial ethics were vastly less developed than they are today, the chief justice’s actions may yet have given the young republic an ill-advised display of pronounced judicial partiality.

Notwithstanding all this, Newmyer gives Marshall high marks for his conduct of the trial. Despite the unfortunate appearances, the judgment seems sound. Marshall’s job was to see that a man whose guilt was assumed almost from the moment of accusation nonetheless received a fair trial. His subpoena sought to give Burr the right to present evidence critical to his defense, and his evidentiary rulings sought to limit the trial to those charges actually set forth in the indictment. Further, Marshall’s demeanor in the midst of the encircling mayhem remained calm, and his rulings were laid forth in language that preserved the high ground of legal principle even as they proved difficult for the public to read or comprehend.

The great Marshall opinions in Marbury, McCulloch, Gibbons, and the like secured his place in history; they also secured the place of the courts as a true Third Branch. In the early years of the Republic, the federal judiciary needed to prove itself not just at the heights, but on the ground. The Burr trial helped to do that. Newmyer notes that “the one principle” Marshall never compromised during the trial “was his commitment to judicial duty and judicial independence.”

For that, he paid a heavy price. A Baltimore mob hanged him in effigy for siding with the “traitor.” Republican partisans sought to arraign the Federalist Marshall before “the bar of the public” as a “disgrace to the bench of justice.” The Burr trial also precipitated calls to impeach Marshall in the Senate, calls encouraged by President Jefferson. Yet Marshall had to know this was coming: If a collateral benefit for Marshall of Burr’s acquittal was Jefferson’s acute discomfort, that does not, in the end, outweigh the course of courage and independence he set for federal courts.

We are left, finally, with Jefferson. Even the greatest of the Founders had their low moments, and among Jefferson’s was the trial of Aaron Burr. Jefferson was right to be concerned about Burr’s conduct: Communications from the West were poor, rumors abounded, and the prospect of a freelancing former vice president pursuing his own foreign policy was not amusing. The problem was that Jefferson’s desire to get Burr, well past any point of danger, became a near obsession—perhaps because of general mistrust or, perhaps, because Jefferson had never forgiven Burr for his tardiness in bowing out in favor of Jefferson in the disputed presidential election of 1800.

At any rate, Jefferson personally assumed direction of the prosecution, writing letters to his ally, U.S. attorney George Hay, that, according to Newmyer, “were in fact instructions about litigation strategy: about the nature of the charges that should be brought, about evidence, about whom to call for witnesses and how to interrogate them.” The spectacle prompted Burr’s defense to term “the president’s interference with the prosecution . . . improper, illegal and unconstitutional.” Luther Martin claimed Jefferson had “let slip the dogs of war, the hell-hounds of persecution, to hunt down my friend.”

Mixed with the high code of personal honor in the early 19th century was a startling amount of invective and vitriol. Partisanship was never far from the Burr trial. Not that partisanship is necessarily a bad thing: It imparts energy to politics, encourages participation in electoral pursuits, and frames choices for voters in a recognizable way. But given the stakes, both then and now, no one should suppose that disagreement will be dainty, and the gentlemen of the early 19th century could pummel with the best. The question, then and now, is what limits should partisans observe?

Jefferson was eager to unleash the full fury of prosecutorial power upon a personal enemy and political opponent. Had he succeeded, American politics might have taken a far different and more retributive course. As it is, the willingness to criminalize our political differences is bad enough. Not only through the discredited institution of the independent counsel, but through the executive branch itself, have questionable and marginal proceedings been initiated. Whether the behavior of a president, a sitting or former senator, or numerous subordinate executive officials is vain, greedy, evasive, or sleazy beyond measure is one question; whether it is criminal, not to mention impeachable or treasonous, is something else.

The dangers of executive abuses will only grow with time, as government agencies may be diverted from public purposes to personal or partisan ends. It is here that the Burr trial is instructive. Aaron Burr was a scoundrel; but, based on the evidence adduced, a traitor he was not. Had Jefferson succeeded in having him executed, Burr’s blood may have stained Jefferson’s hands throughout history. In that sense, Newmyer wisely observes that Marshall (and, ironically, Aaron Burr) saved Jefferson from himself. Burr’s acquittal was not an act of absolution for a devious and narcissistic man, but an act of national grace. It set limits on the partisan uses of executive power, without which the rule of law would snap.

J. Harvie Wilkinson III, a judge on the U.S. Court of Appeals for the Fourth Circuit, is the author, most recently, of Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance.